The Traveller Movement, R (on the application of) v Chair of the UK COVID-19 Inquiry

The claimant challenges the Chair’s decision that it is a “substantial body” as involving an error of law or as irrational. The phrase “substantial body”, the claimant submits, must be read in context. A charity cannot properly be regarded as a “substantial body” if it would be unable to pay for representation without being unable to fulfil its existing charitable functions, especially where the charity’s trustees would be unwilling to permit the diversion of funds from the body’s primary charitable objects. In this respect, the claimant relies on the policy prior to the 2005 Act, as set out in guidance from the Treasury Solicitor issued in June 1998 and recorded by Colman J in Re-hearing of the Formal Investigation into the Loss of M/V Derbyshire [2002] CLC 1304, [2003] 1 All ER (Comm) 784, at [24]. This makes clear that funding should be granted if the body would otherwise be prejudiced in seeking representation.

As to “special circumstances”, the Chair took the view that the claimant’s financial position alone disqualified it from being able to establish special circumstances. This, the claimant submits, was an erroneous approach. “Special circumstances” are not so limited. One feature which was critically important to the decision whether “special circumstances” existed was the centrality of the Gypsy, Roma and Traveller communities to the issues to be considered in the Vaccination Module. The claimant was not in a position to make fully informed submissions on that until it had received disclosure. This happened after the initial decision on 11 December 2023. The information disclosed showed that a high proportion of the documents made reference to the impact of Covid-19 on the Gyspy, Roma and Traveller communities. The claimant drew this to the Inquiry’s attention, but the decision of 22 July 2024 did not deal with these points.

Any analysis of the legal framework within which the Chair makes funding decisions must start from the language of the 2005 Act. Section 40 gives the chairman a broad discretion to award funding for legal representation, subject to conditions imposed by the Minister. The discretion must be exercised in the light of s. 17(3), which entrusts the chairman with the task of balancing the requirements of fairness against the need to avoid any unnecessary cost (including to public funds). The express identification of the latter need is significant.

It was in that statutory context that the decision-maker had to consider the terms of the Prime Minister’s Determination and, specifically, whether for the purposes of paragraph 7 the claimant was a “substantial body” and, if so, whether there were nonetheless “special circumstances” which supported the grant of funding.

In my judgment, a court considering the proper approach to judicial review of decisions on those questions should be guided by the principles set out by Lord Mustill (with whom the other members of the Appellate Committee agreed) in R v Monopolies and Mergers Commission ex p. South Yorkshire Transport Ltd [1993] 1 WLR 23. (I drew counsels’ attention to this case at the start of the hearing and heard submissions on it.) There, a competition regulator had to consider whether the claimant company was operating in “a substantial part of the United Kingdom”. Lord Mustill held that the question had to be approached in two stages. First, since “substantial” was a protean term, the court should avoid the danger of “by redefining it thrusting on it a spurious degree of precision”. The word meant simply “worthy of consideration for the purpose of the Act”: see at p. 29. Reading the challenged decision as a whole, there was no misdirection. That being so, where the criterion is imprecise, the second stage involves an evaluative judgment by the decision-maker; and “the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational”: see at p. 32.

This analysis applies whenever a decision-maker has to interpret a protean or imprecise term and then apply it to the facts of a particular case. As it happens, the dispute in the present case centres on the interpretation and application to the facts of the same word as was in issue in the South Yorkshire Transport case: “substantial”.

In my judgment, the meaning of paragraph 7 of the Prime Minister’s Determination is to be approached on its own terms, rather by reference to any policy pre-dating the 2005 Act. That meaning is clear. In the ordinary course of events, public funds are not to be expended on providing legal representation to bodies whose size and resources are such that, other things being equal, they ought to be capable of funding it themselves. At this stage, in deciding whether the body in question is a “substantial body”, the decision-maker is entitled to limit herself to a broad, high-level analysis, which does not need to descend to the level of individual funding sources or what other activities the body would have to forgo if it chose to fund representation. What is required is a broad judgment about the size and resources of the body. The letter of 11 December 2023 discloses no misdirection in this regard.

In the absence of any misdirection, the decision whether the claimant is a “substantial body” called for an evaluative judgment by the Chair against the statutory background of the duty imposed by s. 17(3) to act with fairness and with regard also to the need to avoid any unnecessary cost. She was better placed than anyone else to make this judgment because she would have a very clear idea of where the claimant fell on the spectrum of bodies which had applied for (and had by then been granted) funding for legal representation. In the circumstances, and applying the South Yorkshire Transport approach, it is impossible to stigmatise the Chair’s decision that the claimant is a “substantial body” as irrational, or indeed wrong (a term sometimes preferred when reviewing the exercise of a discretion).

At the next stage of the analysis, the Chair was required to consider whether, even though the claimant is a “substantial body”, there were “special circumstances” justifying a call on public funds. These latter words are also broad. The Prime Minister deliberately chose not to define further the kinds of considerations that could constitute “special circumstances”. The Chair’s approach was to ask herself whether the claimant could be expected to fund representation itself, but this time with a more detailed focus on the claimant’s ability to apply its income and reserves to that purpose. That is why she agreed to review the position in April 2024, when it would be clearer whether the anticipated reduction in income and reserved had materialised.

There was nothing unlawful about this approach. It explains why the Chair did not deal specifically with the points made, following receipt of disclosure, about the centrality to the Vaccination Module of issues concerning the Gypsy, Roma and Traveller communities. That was taken as given. The question was whether, even though these issues were likely to be central, the claimant’s resources were such as to justify, exceptionally, payment out of public funds.

As to that, she made some general points in the letter of 11 December 2023: like other charities, the claimant would have to make challenging decisions about priorities; and it was usual for income and reserves to fluctuate as funding programmes come to an end and new sources of funding are sought. When she reviewed the position on 22 July 2024, she focussed on whether the charity’s income and reserves had position had significantly deteriorated and concluded that they had not. In my judgment, there was no justiciable error here. It is not enough for a charity to say that its trustees will not allow it to divert resources from other priorities, which are more central to its objects. Charities must make difficult decisions, as the Chair noted, but so must those charged with disbursing public money for legal representation.

For these reasons, grounds 2 and 3 are not reasonably arguable.

Under ground 1, the claimant submits that the Chair acted unfairly by failing or otherwise refusing to reconsider her decisions as to “substantive body” and “special circumstances” after its renewed application for funding on 16 May 2024.

Once the proper approach to the “substantial body” and “special circumstances” questions is understood (see the analysis in relation to grounds 2 and 3 above), it can be seen that there is nothing in this point. Fluctuations in the claimant’s income and reserves between December 2023 and April 2024 were more likely to be relevant to “special circumstances” than to the “substantive body” question. In the event, however, the Chair’s conclusion on 22 July 2024 that she was “not satisfied that there has been a significant deterioration in the [claimant’s] financial position” was sufficient to explain why there was no change on either issue.

There is nothing to indicate that the Chair failed to consider any of the claimant’s representations. It is true that she omitted to deal in terms with the claimant’s submissions as to the centrality of issues concerning the Gypsy, Roma and Traveller communities, but there was no need to deal with those issues because from the outset the funding decision was premised on an acceptance that those issues were likely to be central ones.

Under ground 4, the claimant complains that the decision of 22 July 2024 was inadequately reasoned.

In my judgment, this ground too must be considered in the light of the analysis in relation to grounds 2 and 3. The adequacy of the reasons for a decision can only be judged on the basis of a proper appreciation of what the law requires the decision-maker to consider. The 11 December 2023 letter made clear that the decision-maker had taken into account the claimant’s income and reserves. Those were sufficient reasons for the conclusion, inevitably expressed at a high level, that the claimant was a “substantial body”. The general matters (as to the need to make challenging decisions about priorities) were sufficient to explain the decision on “special circumstances”, subject to a review of the position after April 2023. The conclusion that there had been no significant deterioration in the claimant’s financial position as at 22 July 2024 was also a sufficient basis for maintaining the refusal to fund.

For these reasons, grounds 1 and 4 are not reasonably arguable.

For these reasons, and despite the attractive submissions of Christopher Jacobs for the claimant, permission to apply for judicial review is refused. Because there was relatively extensive argument at the permission hearing, and because the judgment considers matters of law that may be of general relevance to others making funding applications at public inquiries, I give permission for this judgment to be cited.